Shared Parenting Information Group (SPIG) UK

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Enforcement of child contact orders in Australia (1999)

Australian government to act

The Australian Federal Government has announced [1] that it accepts the 1998 report Child Contact Orders: Enforcement and Penalties [2] of the Family Law Council of Australia, and will implement them through legislation.

The report makes 15 recommendations [3], the main points of which are summarised below.


The main problems identified by the report are:


The report stresses that contact problems are unique and that special provisions need to apply to the making, and breaches, of contact orders. It suggests that there is a need for a three tiered approach in dealing with the contravention of contact orders: The report also addresses the need for: The following issues are also addressed

Problems experienced by contact parents

Contact parents reported a number of problems, including: Problems with the current system were also mentioned.

Problems experienced by residence parents

A number of problems were reported for residence parents also :

Community attitudes

The report notes that the underlying philosophy of Part VII of the Australian Family Law Act is that children have a right of regular contact with both their parents and with other people significant to their care, welfare and development, except where this would be contrary to the child's best interests.

Despite this there is a prevalent attitude that the residence parent can set and vary the conditions for contact, and in extreme cases they may see themselves as the "owners" of the child - and contact parents see themselves largely at their mercy. This attitude has developed over a long period and is well entrenched in some sections of the community. It is unlikely that any innovations by government will be effective unless such attitudes are radically altered, and to this end a program of community education is proposed to reinforce the right of children to have contact on a regular basis with both parents and with other people significant to their care, welfare and development.

It is considered important that all sections of the community understand that, following separation, the residence parent (irrespective of whether that person is the mother or father of the child) does not set the conditions and determine the individual circumstances under which the other parent - or others, including grandparents and relatives - can have contact with a child.

Attitude of the courts

The report notes that there is a fairly widely held view that the Family Court is reluctant to enforce the contact orders it has made. To rectify this, changes should be made to the legislation to make it clear to judges that breaches of court orders must be treated seriously and that wilful disregard of orders of the court shall be dealt with adequately and appropriately.

The report states also that the courts must remember that the existence of a contact order indicates that a ruling has already been made on contact between the child and the contact parent. When the contact ordered by the court is not taking place, the court should be primarily concerned about the reasons for this - there should be no need to re-open old issues or review of the contact order.

The drafting of contact orders

Rather surprisingly the submission from the Family Court of Australia blames litigants in person for poorly drafted orders which are open to misinterpretation. In our experience litigants know exactly what they want, but it is the lawyers and the judges who draw up imprecise orders. In any case it is the duty of the court to ensure that the orders they make (even if they merely rubber stamp them) are clear and precise.

The report suggests that the use of standard forms may improve the clarity of orders, and it also proposes that they should be endorsed with warnings which indicate the seriousness of breaching contact orders and advice about what to do when the order is breached - emphasising the alternatives to court action.

Contact handover facilities

The report, whilst acknowledging the important role of contact centres as a temporary place for hand over, does not consider that they are ideal arrangements from the child's point of view as it feels that the environment created by using such a place does not convey the correct message to the child involved. It does however support the expansion of such publicly subsidised services as without such an arrangement it is likely that some children would eventually lose contact with one parent.

Alternatives to court action

The report expresses concern that the present legislation pushes parents into litigation to resolve breaches of orders, and feels that wherever possible judicial determination should only be used as a last resort.

The following recommendations are made:

Enforcement of contact orders

The report distinguishes between enforcement of orders and the penalties for their breach. The following requirements are identified: The report recognises the need to act quickly and proposes a simple process where: The idea of the court monitoring cases is novel and welcome.

We note that although the report refers to 'compensatory contact' - the ordering of additional contact to cover contact which was obstructed - it is not specifically addressed in the recommendations. Likewise the situation where the residence parent 'moves away' is not sufficiently covered.

Penalties for breaches of contact orders

The Family Law Council is of the view that there need to be special legislative provisions relating to contact enforcement because of the unique nature of contact problems.

Where all other approaches have failed, the report suggest an armoury of weapons which may have a powerful influence on uncooperative residence parents and ensure that orders are complied with:

The need for legislative changes

The report notes that some of the recommendations made will require legislative amendments. The main recommendations on short-term changes are: The longer term measures envisaged in the report will require more significant legislative change. Those changes primarily relate to the establishment of a summary process to undertake the primary work relating to problems with child contact.

Child support and contact enforcement

The report strongly recommends that there should be no link between payment of child support and child contact.

Resources and financial issues

The report takes the view that the problem of child contact enforcement is real, it is persistent and it must be addressed.

A number of recommendations made in the report have resource implications:

The report recommends that the Australian Government invests funds in the proposals put forward and stresses that unless funds are made available to achieve changes in this area the present problems being experienced by parents are unlikely to be overcome. However, it is Council's belief that in the long-term there is potentially a significant cost saving (in financial and human terms) in the proposals put forward in this report. A relatively modest investment in improving the system now will, in the opinion of Council, translate into a resource saving in the long-term. This will happen if:


  1. Improved enforcement of parenting orders - Further Family Law reform to improve parenting - News release from the Australian Attorney General - The Hon Daryl Williams AM QC MP - 26 February 1999
  2. Child Contact Orders: Enforcement and Penalties; Family Law Council, Canberra, June 1998 (340K bytes)
  3. Recommendations of the report
  4. Interim Report: Penalties and Enforcement; Family Law Council, Canberra, March 1998 (200K bytes)

David Cannon

Last updated - 21 August 1999

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